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Standing Committee on Health, Aged Care and Sport
26/04/2018
Quality of care in residential aged-care facilities in Australia

MITCHELL, Mr William (Bill), Principal Solicitor, Townsville Community Legal Service Inc.

CHAIR: Thank you for joining us today. I will go through the formalities that I need to go through. Do you have any objection to being recorded by the media if they happen to be present during the hearing?

Mr Mitchell : I have no objections.

CHAIR: We're in a formal committee hearing room, so there are members of the public present as well. I'm required to remind you that these are formal proceedings of the parliament. The giving of false or misleading evidence is a serious matter and in some circumstances could be considered contempt of the parliament. Today's proceedings are being recorded by Hansard. Your evidence attracts parliamentary privilege. Thank you for the written submission that you provided to the committee. I invite you to make an opening address before we move on to questions.

Mr Mitchell : I think that the inquiry is very timely not only because of the events that gave rise to this and the other inquiry but also in the sense that the Australian government is currently looking at elder abuse from a very broad perspective, and the Attorney-General has announced a national plan of action on elder abuse. I think that this area of institutional abuse is an area that has the potential to be left out of national plans. It is a very important area because it, in my view, includes those who are most vulnerable in our community. I welcome this opportunity to make some comments on some of the key areas that I think the inquiry might think about in framing its report.

I have in my initial submission—I have to apologise for the submission; it was cobbled together in a short period of time from an academic article that has been submitted which I couldn't provide, because of restrictions on possible later publication, so there are some gaps in it. What I've tried to outline is a number of the key issues, including that the definitional debate, whilst it is in a bit of a quagmire at the moment in Australia, should not be an excuse for ensuring that the most vulnerable people are not included. When I say that, I mean people living in institutional care and particularly those who have some level of cognitive impairment. When I say most vulnerable, I mean not only people living in institutional care but also those who have the highest likelihood of being abused.

The first point I make is that this inquiry needs to appreciate the importance of putting those people front and centre of any process that looks to protect their interests. The second point is that I've tried to give three examples of where the system, if I can call it that, might be improved to ensure that protections are offered whilst people are alive in care and that there is a process of proper accountability post death. That is the focus of the paper that I've written; it looks at the fact that we know far less about deaths in aged care that might have been caused by institutional abuse than we know about all other areas of institutional abuse, particularly those that affect children and people of working age, if I can call them that.

Of the areas that I focused on in the submission, the first is that we need to seriously improve our system of coronial triggers at a state and territory level. Whilst that's not a Commonwealth responsibility, the proper harmonisation and uniform laws that affect all Australians are a recognised federal responsibility through its own committees. The second area I've mentioned is in fact the notion of institutional abuse itself, to make sure that we appreciate that it's something that we need to start to describe and something we need to start talking about so that those people in institutional care don't get left behind in the broader debate around elder abuse. Two of the other issues that I think might fall within this broader debate are the issue of how we regulate the restrictive practices and interventions that occur in aged care. Currently we are in a vacuum, and, frankly, in my submission that is a very concerning matter that needs urgent attention. Secondly, the way in which we deal with the suitability of staff in aged care is another matter that requires some urgency and requires federal leadership to ensure that we have best practice. They are the matters I've touched on in the submission, but I'm happy to talk about other issues if the committee so desires and they're within my competence and expertise.

CHAIR: Thank you. I note from your submission that the Townsville Community Legal Service have, effectively, a dedicated service supporting older people in the region. What is the frequency of your work in relation to residential aged care? Is it a common area where you're getting matters referred to you?

Mr Mitchell : It's a very common area on a number of levels. It's a common area for us to see clients experiencing elder abuse—or if I can just say violence or abuse. Firstly, at the time at which older persons are identified as needing additional care that can't be provided at home, that transition point from in-home care to aged care is a real pressure point for abuse. It's the time at which family members become acutely aware of the assets that an older person has, because of the nature of them entering into financial arrangements with the Commonwealth around their aged care. It's a time at which family are often in conflict about decisions on how to look after or how to provide for their older members. It's a time in which older persons are very vulnerable. That transition time is where we see the first group.

The second group are those who are in aged care already and who are suffering some form of abuse within that institutional setting. I think I sent a schematic with the breadth of possible—I've called them actors, but they are essentially perpetrators in an aged-care scenario. It's very broad. We do see a wide range of abuses of older persons not only from those that we would automatically think of, such as staff on resident, but also sometimes resident on resident, strangers or visitors, and the many manifestations of family, from co-resident partners through to visiting children, grandchildren and other relatives. The schematic I've given you gives you an idea of just how broad the possibilities are in terms of the abuse of older persons in aged care. It also shows some of the limitations for applying existing definitions about relationships and trust or other types of markers for determining a relationship of abuse. It shows that older persons in aged care have such a wide range of factors in their lives that it is important that we, I guess, flesh out some of those possible dynamics.

CHAIR: Have you had an opportunity to review the Paterson-Carnell report?

Mr Mitchell : I have, but I'll be honest and say I have not spent as much time with that as I would like. I am conscious of the fact that it was quite focused on the events arising out of Oakden. I have been more focused in my work on the current aged-care system as opposed to that particular circumstance. I am not familiar with the facility at all; it is in a different jurisdiction. Most of my experience is from talking with clients who have experienced local aged care. No, I don't have any particular comments on that facility but I am certainly aware of the work that has been done. The one key recommendation for me that arises out of the Carnell report is that the time is nigh for the federal parliament to take the regulation of restrictive practices in aged care very seriously.

We have a situation which in some way beggars belief in that if you are a child or of working age, you will have a system of restrictive practices regulation. If you are of aged-care age—remembering that that involves Aboriginal persons of 50 years or higher so it is a variable age for our population—you really don't have anything in place that tells us when it is appropriate to use a restrictive practice or what sort of practice might be used—whether it is validated by any sort of research, whether it is necessary in the circumstances. I think that is the point made by Carnell. It has been made by many people over time and certainly my colleague, the Public Advocate of Queensland, Mary Burgess, will make this strong point very strongly later, I am sure. She and I have both been raising this issue for some time. As I said, it beggars belief that the increasingly largest cohort of our population, including the one that has the highest number of people with disability, exists in a vacuum of regulation.

CHAIR: Thank you for the submission, which, despite your own reservations, I thought was very comprehensive. I want to clarify: in your section on staff screening you refer to blue and yellow cards in Queensland. Could you explain that to those of us unfamiliar with it.

Mr Mitchell : Queensland has a system where, if you wish to work with certain vulnerable persons, you need to apply to an external authority for suitability screening. So if you wish to work with people with disability or with children, an external screening authority takes a range of information from you, including your criminal history—in fact, it is broader than that—and uses a process of screening to ensure that you should or shouldn't be working with those vulnerable persons. I don't want to get too focused on the Queensland situation because I've got nothing to say, or no clear evidence base to say, that this in fact is the best state jurisdiction screening process.

For me, the fundamental difference between what the states and territories generally do and what the Commonwealth does is that the decision about whether or not someone is suitable is taken out of the service provider's hands. At a federal level at the moment, service providers are required to make this decision whereas in other areas, such as in Queensland or in New South Wales, I'm sure, an independent authority turns its mind to the suitability issues and has a specialist expertise in determining suitability. There is some concern that service providers themselves may overlook suitability issues because they are short of staff. They may, for whatever reason possible, not bring the same forensic consideration of suitability to an applicant's circumstances that an independent authority, which has no vested interest in the decision whatsoever, might bring to it. It's another area of accountability that the Law Reform Commission has raised. We've been raising this as well. We also say that people's backgrounds need to be balanced. A consideration of their backgrounds needs to be balanced against things like the ILO conventions, which talks about relevant criminal history, but we don't believe that service providers should be the agencies determining suitability, and for us that's a very clear reform that needs to be made. Obviously, there are some costs for the system, in terms of how you would develop that, and I don't know if there's some possibility of using state-based systems to make those determinations for aged care. They already have those processes in place to work with children and persons with disability, so it would be interesting to see whether there was harmonisation across both schemes, but that is a better practice than having service providers assess that themselves.

CHAIR: I want to ask about your comments about inquests in relation to deaths in residential aged care. You made some comments about what is and isn't a reportable death. Could you expand on how you think that could be managed in the aged-care setting? I note your comment that only a limited number of cases end up as coronial inquests. But, without wanting to be callous, entering an aged-care facility, for most people, is a one-way street. How would you establish a coronial system that is practical, considering that most people who enter an aged-care facility are doing so at the final stages of their age spectrum, if I can put it like that?

Mr Mitchell : The first point I'd make is that the very notion that we enter aged care and never leave, which is absolutely the case, has been an imperative for many years to allow us to treat older persons in a different way. It is a simple fact of our legislative system that the states' and territories' coronial laws use a completely different assessment for a death in care if it occurs to someone who's outside aged care rather than someone who's within aged care. In every state and territory, a death in care excludes aged care, and that is an underlying bias that is seen in coronial systems all around the world; you are far less likely to have any sort of death investigation if you are older than if you are younger. It is the same for criminal prosecutions. You are far more likely to see prosecutions for neglect against children than you are for neglect against older persons. These things are discriminatory whichever way you look at them, and of course there is a need to learn from coronial investigation and inquest when, at its most serious, the quality of care falls down and a death occurs because of the quality care.

CHAIR: What do you think the trigger point should be for a coronial inquiry for someone who dies in a residential facility?

Mr Mitchell : It's very difficult to say in any detail now, but I think that, at the very least, it should include the existence of a restrictive practices history. It should include the existence of a preventable death, such as Dr Ibrahim has given in huge amounts of detail, which I would certainly recommend that the committee look at closely, and I'm sure he's given evidence to this inquiry. One of the complexities of this area which I've been grappling with is how we define death, and there are a myriad of those things as well. But I think we should be concerned with external-cause deaths. I think we should be concerned with what we might say were potentially avoidable and potentially preventable deaths, and they are different things. We need to come to terms with the terminology that the ICD, the International Classification of Diseases, uses for classifying deaths, because within that classification we find the sorts of matters that should give rise to a post-death investigation.

From my perspective the big-ticket item that I wanted to raise today is the restrictive practices history, but, having said that, we don't know about this now because we don't have any requirement that it actually be recorded, audited or available even to a family member. We could use that one example if an older person died in care and have the certifying doctor look back on the clinical record—and the Carnell inquiry made very clear that the clinical record is very important at this time—and see that there had been a long history of restrictive practices used, including chemical sedation and physical restraint, and there had been an incident of resident-on-resident aggression between this person and another older person, so there was a proper serious incident report. The history would look very different to not seeing that information. So, whilst I can't articulate absolutely the things that would need to be included, I think it's very easy to articulate that, if you included these things, it would look very different post death. I think some work needs to be done on how you articulate proper triggers. Of course that work has already been done for children and others. It's not like we're working in a vacuum here at all.

Mr ZAPPIA: I have a couple of questions that relate specifically to elder abuse perpetrated by aged-care facility providers or their staff. To your knowledge, have there been any matters that have ended up in court as a result of elder abuse within facilities?

Mr Mitchell : Not to my knowledge. They find themselves sometimes in accreditation processes—and I've not had the opportunity to go through the accreditation decisions around that issue. They do find themselves in the aged-care complaints system, but our submission raises our general concerns with that. Serious matters of abuse or neglect should not be resolved by a mediation or dispute resolution scheme; they require more serious attention than that. They require proper judicial or semi-judicial oversight. So one of the problems we face is that the sorts of things that occur only can be ventilated in a complaints system. The complaints system has no public reporting of the outcomes. It has a very different focus than we say should occur. No, we don't see them and we really can't expect to see them given the nature of the current system.

Mr ZAPPIA: Again I'm interested in your comments about this. I would have thought that if family members feel aggrieved enough about an elder abuse allegation and if the system itself wasn't responding adequately then ultimately the matter would end up in court and there might be some way of doing that. Yet, from what you're saying, that doesn't happen. Are you also suggesting that it can't happen?

Mr Mitchell : No. It can happen. The most common way it can happen is that someone makes a complaint to one of the existing bodies and they are unhappy with the outcome of that complaint and they go on judicial review to one of the courts in Australia. That happens from time to time. In my view the most common way it should occur is that it be the subject of a coronial inquest, whose very nature is to determine cause of death, make systemic findings about how you prevent these sorts of deaths in the future and, where appropriate, make referrals to prosecuting authorities. This is why we say that that process is the most important one. It has all of the powers that it needs to conduct a proper and thorough investigation, it reports publicly and it makes systemic findings.

In terms of people bringing civil applications in these sorts of matters, most people simply couldn't afford to bring an application in court against an aged-care facility because of something that happened like this and, if they did and the person was dead, there would be very difficult evidentiary problems. The common law and the civil litigation system in Australia are not really structured to address this sort of issue. I'm not even suggesting that it be the place because that in itself presumes that they are seeking an outcome that has a compensatory value.

Mr ZAPPIA: But, Mr Mitchell, the committee has heard evidence that there's a level of frustration about the reporting process available to families or residents of aged-care facilities who feel that they have been mistreated. I am curious as to why, given the level of criticism currently being made, more matters, whether they result in death or not, have not ended up before the courts for adjudication. You've suggested that, perhaps, money could be one of the reasons, but—

Mr Mitchell : There's no legal aid for these sorts of matters really, and private lawyers are unlikely to speculate on this sort of case. It's a simple access-to-justice answer: people don't have access to lawyers for these sorts of matters. It's an area that, again, suffers from ageism—that people aren't engaged in this sort of process. There aren't that many lawyers around the country who working very hard in this area. They probably don't have the resources to undertake civil litigation for families, and there aren't really the specialist agencies to bring those complaints to. The tried-and-true path is the Aged Care Complaints Commissioner, which has its limitations that are, no doubt, being ventilated in this inquiry. Beyond that, the civil courts are extraordinarily technical and expensive places to access. From time to time, families with some money will seek justice, but they'll spend an awful lot of time and money doing it, and the courts aren't really adjusted to provide the answers that they're seeking. Whereas the Coroner's Court, in cases of death, is perfect.

Mr ZAPPIA: I've one last question. One submission, which was based on a study, suggested that one in six deaths in aged-care facilities were preventable. If a death is preventable, then in my view it suggests that there was a failure in the duty of care to that resident. If that was the case, again, I'm surprised that more matters have not ended up in the courts as a result of deaths.

Mr Mitchell : I share your surprise and, if that's the evidence of Dr Ibrahim, then, I have no reason to doubt his very thorough and comprehensive study into preventable deaths. There are some definitional issues that we need to be cautious about because the ABS uses a string of definitions around death, including avoidable, preventable and those sorts of things. We don't have time to talk about that today but, certainly, I think where something is identified as preventable—whether it be in a systemic sense, a failure to immunise; or in an individual sense, a failure to put safeguards in place for that person—that's the sort of thing that would initiate some kind of trigger to look at that case in more detail. So, yes, I think that there should be a greater number of these things being referred to police and coroners for investigation. Whether they actually hold an inquest down the track is another matter. They've only got limited resources, but that's not to say they won't investigate these matters and work with families to find answers to what's happened. There are a great number of matters that are investigated by coroners and police that never find their way to inquests, because that requires the additional overlay of public interest. But I share your concern, given the obvious issues around prevention of death and the use of restrictive practices, that we are not seeing many, many more cases being agitated, and I don't have an answer for why that doesn't happen.

CHAIR: One last question from me—and this reflects the fact that I've never delved into the coronial process—can a member of the public, for example, a family member, petition the coroner to open an inquest into a death?

Mr Mitchell : Yes, they can, and that's what generally happens in these cases because there is no obvious trigger. That's not to say coroners don't hold inquests into older persons' deaths; they do. However, because there's no automatic trigger like there is for other deaths, its probably affects the number of times it happens. That's the ultimate outcome of Dr Ibrahim's research. I'm just taking what he says one step further and saying, 'Perhaps if we put in place some proper triggers, we would see more of these things considered.' It's certainly one of the things that the Commonwealth could lead in terms of looking at a new definition for a death in aged care and bringing the states and territories along. There's not much point in one state saying, 'Let's tinker with our definition and add this or take that away.' This is a federal and state responsibility and it needs to be treated accordingly.

CHAIR: Thank you for your submission. It was very useful. I also thank you for your time today. You'll be provided with a Hansard transcript of today's proceedings and, if there's anything that you want to add once you've seen that, if you could do so through the committee's secretariat by 10 May, that would be very helpful. Obviously, if we have any further issues that we want to come back to you with when we're completing the report, we will.

Mr Mitchell : I thank the chair and other members of the committee for their time today.

CHAIR: Thank you.